Australian Education Union v Dept of Education and Children's Services
[2012] HCA 3(2012) 248 CLR 1
(2012) 285 ALR 27
(Decision by: Heydon J)
Australian Education Union
v Dept of Education and Children's Services
Judges:
French CJ
Hayne J
Heydon JKiefel J
Bell J
Judgment date: 29 February 2012
Decision by:
Heydon J
[36] Before it was repealed, s 9(4) of the Education Act 1972 (SA) ("the Act") referred to two classes of people other than the officers and employees whom the Minister might have appointed under it. One was the "officers of the Department". Relevantly to that class, s 11 as originally enacted provided for a Director-General of Education to be Permanent Head of the Education Department, for Deputy Directors-General of Education and, by s 11(4), "such other officers of the Department as may be necessary or expedient for the proper administration of this Act." The other class referred to in s 9(4) was the "officers of ... the teaching service". These officers were appointed pursuant to s 15.
[37] Section 15(1) might be described as a "particular" provision since it conferred power on the Minister to appoint "officers of the teaching service". Section 15(2) might also be described as a "particular" provision because it permitted officers of the teaching service to be appointed on a permanent or temporary basis. Section 15 as a whole may be described as a "particular" provision in another sense -- it appeared in Pt III of the Act, which contained 40 sections and as originally enacted set up a very detailed regime that related to officers of the teaching service, rather than teachers. After its initial enactment the section was amended, but without changes material to the outcome of this appeal. The enacted regime dealt with the appointment, retrenchment and retirement of the officers of the teaching service, their long service leave entitlements, the disciplinary procedures and outcomes applicable to them, their classification and their remuneration. It also created institutions to administer this regime such as the Teachers Classification Board, the Teachers Salary Board and the Teachers Appeal Board.
[38] Section 9(4), on the other hand, was a more general provision. It conferred power on the Minister to appoint such "officers and employees" as he or she considered necessary for two purposes -- the proper administration of the Act and the welfare of the students of any school. The appointment of persons other than teachers could have effectuated both purposes. Section 9(4) was one of nine subsections, each of which deals with a disparate subject. Section 9(4) was part of a provision providing for those powers and functions of the Minister which are, to use the adjective in the relevant marginal note, "general".
[39] That structure suggested that the correct construction of the Act required that s 9(4) be read as not having permitted the employment of teachers. If s 9(4) were read as having permitted their employment, the elaborate and specific structure of Pt III dealing with the officers of the teaching service who were appointed under s 15 could have been bypassed. If s 9(4) were read as having permitted the employment of teachers, two classes would have existed. The first would have comprised officers of the teaching service, whose affairs were regulated in detail. The second would have comprised other teachers -- temporary teachers -- whose affairs were not regulated at all. There is no statutory warrant for concluding that teachers could be appointed to government schools who were not "officers of the teaching service". Hence s 9(4), which provided that the officers and employees capable of being appointed under that provision were "in addition to the officers of the Department and of the teaching service", excluded the appointment of teachers from the powers it conferred. In that context, "in addition" meant "along with" or "apart from" or "distinct from".
[40] It is desirable to deal with three specific arguments of the respondent.
[41] First, the respondent argued that on the construction which it advocated the statutory scheme was rational because s 9(4) gave the Minister the "flexibility necessary properly to provide for the educational requirements of the students at government schools." However, the respondent did not point to any matter of practical utility flowing from the "flexibility" of s 9(4) which could not be found in s 15, and in particular s 15(2). That weakens the proposition that s 9(4) conferred the flexibility on which the respondent relied.
[42] Secondly, the respondent relied on certain statements in Cusack v Parsons. Jacobs J (with whom Millhouse J agreed) said: [51]
"[T]eachers" in departmental schools are not necessarily officers in the teaching service. They may be "employees" appointed and engaged by the Minister pursuant to [s] 9(4).
And in his dissenting judgment Cox J said: [52]
The Act ... makes a clear distinction between those teachers who are officers of the teaching service and those who are not.
But his Honour also suggested that s 9(4) did not permit appointments for teaching purposes: [53]
[Section 9(4)] envisages three categories of officers -- officers of the teaching service, departmental officers, and other officers considered necessary for administration or welfare purposes ... It is probably also the case that the teaching service established under Pt III consists solely of officers, appointed pursuant to s 15.
[43] Decisions of the Full Court of the Supreme Court of South Australia do not bind this court. In addition, the controversy in Cusack v Parsons did not concern the relationship between ss 9(4) and 15. The statements about s 9(4) were only dicta. The question whether teaching appointments could be made under s 9(4) has to be decided in this appeal. Even if one adopts the reading of what was said in Cusack v Parsons which was most favourable to the respondent, the answer to the question before this court was not decided in that case. It was simply assumed. "A point of law merely assumed in an opinion, not discussed, is not authoritative." [54]
[44] Thirdly, the respondent pointed to the definition of "teacher" in the original form of s 5(1) as meaning "any person who gives, or is qualified to give, instruction at any Government or non-Government school". The respondent submitted that there was thus a distinction between "teachers" and "officers of the teaching service", and that persons who were teachers without being members of the teaching service could be appointed under s 9(4). That argument is flawed, however, because the definition of "teacher" served no function in relation to ss 9(4) and 15. Its function lay in the provision by the Act of a system of registration for teachers generally -- those who taught in non-government schools as well as those who taught in government schools. The distinction between "teachers" and "officers ... of the teaching service", though real, does not point in the direction which the respondent desires, for ss 9(4) and 15 are concerned only with government schools.
[45] For the above reasons, the first part of question 1 should be answered in the negative and the second in the affirmative. The appeal should be allowed. The respondent should pay the appellant's costs in the Full Court and in this court.